Early Neutral Evaluation – the ADR Unicorn?

As injury lawyers, our regular ADR diet consists of Joint Settlement Meetings or Mediations, not so much Early Neutral Evaluation (ENE).  It seems like the mythical unicorn of ADR – oft spoken of but rarely seen in practice. When I was speaking about ENE to a large group of insurers at a recent seminar, a straw poll indicated that ENE was not being considered at all. Should we be making better use of ENE?

What is ENE?

ENE usually describes a non-binding evaluation by a qualified person of the merits of a case. This can be a judge-led procedure, as CPR 3.1(2)(p) anticipates, or arranged by the parties, for example tacked on to the end of a failed mediation using the mediator as the evaluator. ENE is usually consensual, but the court can order it to take place.

The ENE is non-binding and without prejudice. There is no set procedure so it can be flexible and entirely done on papers. If judge-led, that judge will have no further involvement in the case.

History of ENE

ENE is not new those who cut their teeth on the South Eastern circuit. Before the CPR was amended (see below) a case management initiative utilised in lower value Multi Track hearings was for a settlement hearing to be listed after a CMC. Clients had to attend in person (or an insurer on the end of a phone) and a District Judge would bang heads together, give their opinion and try to help the parties resolve the proceedings. Other court centres have led with similar procedures in their standard directions.

ENE was introduced into the CPR 2015 and is now referred to in CPR 3.1(2)(p) which provides that the court can take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.

Although other specialist courts included ENE in their guides for several years, the KB Guide only recently included reference to ENE following the illuminating and practical judgment of Master Victoria McCloud in Telecom Centre v Thomas Sanderson Ltd [2020] EWHC 368 (QB). In the current KB Guide paragraphs 10.6 to 10.13 deal with ENE and include a draft model order.

When would ENE be a good choice of ADR?

If a particular issue lies at the heart of a claim, or particularly intransigent parties are blocking the chance of settlement, then an opinion on a point of law or quantum of damages could help to unblock a dispute in a way that a mediator who is there to facilitate settlement could not.  It may be easier for an entrenched party to be prepared to change their position having heard the opinion of a neutral authoritative party. ENE is also good where there are confidentiality concerns, but the parties want to receive an opinion on the merits of a case.  Even if ENE does not lead to immediate settlement, it can be a valuable opportunity, like any form of ADR, for the parties to air their views, explore the issues and focus their minds on settlement.

Practical Issues

If ENE is to be successful, the key is in the name – do it early. This can be agreed to at any time or aired at the first CCMC. The parties will want to control the costs so that it does not become a full-blown trial. This could be done by controlling the number of issues or agreeing that ENE is carried out on the papers only. Although there will be costs involved, at this point in time I cannot find a listed court fee for the “evaluator”. The prospect of getting the opinion of a High Court judge or Master on your case for free is enticing, although I expect the Court will find an applicable fee.

Conclusion

Injury lawyers should be looking out for suitable cases to take to ENE. It may be able to fill the gaps in a particular case that other forms of ADR cannot. I would like to hear your experiences, and particularly if you had to pay a court fee!

Further Reading

• Paragraphs 10.6 to 10.13 KB Guide
• Telecom Centre v Thomas Sanderson Ltd [2020] EWHC 368 (QB)

Article by Jasmine Murphy